traditionally been made. Whether the We need to pay attention reforms have been fully successful in to the development of addressing all legitimate concerns is an open question. the Court’s case law The right to a public hearing in this field, since the Home doctrinal terrain is The third guarantee that article 6 of unstable. New cases Editorial the Convention explicitly lays down is are likely to arise to test the right to a public hearing. This is not Insight an absolute right, since article 6 itself the limits of the Court’s When arbitration is not voluntary: the case of Mutu enumerates the circumstances under general theory and Pechstein v. Switzerland which a public hearing can be denied. However, the presumption is in favour Global Briefing of allowing for a public hearing. The Pechstein, had already said that it would The impact of The Belt and Court has insisted on the importance of be advisable to reform the CAS system Road Initiative on investment public hearings in order to guarantee the in order to ensure the holding of public arbitration fairness of the procedures. At the same hearings, if athletes ask for them. The “What’s in a name?”: NAFTA time, however, the Court has accepted European Court has gone a step further to USMCA and what this that the right to a public hearing may and actually imposed this requirement in change means for investment protection be waived, as is typically the case when the name of the Convention. private parties freely choose to arbitrate In Focus their disputes. Conclusion Cultural Heritage Considerations in Now, in the case of Ms Pechstein, since This is an important judgment by the International InvestmentArbitration the Court had previously determined that European Court of Human Rights. It appointment process. A plausible the CAS arbitration had been forced on has an immediate practical interest, Smart Contracts and It is worthy of note that, in the context answer is that no structural bias is to her, there had been no waiver of the right for purposes of the reforms that need International Arbitration: of investor/state arbitration, there has be expected, in the same way that no to a public hearing. Indeed, Ms Pechstein to be introduced in the world of sports Friends or Foes? been debate about the pros and cons structural bias against victims of human had asked the CAS to hold hearings in arbitration. In addition, it raises some The Achmea decision: of setting up permanent tribunals, rights violations is to be expected from public. The CAS refused, and the hearings difficult issues concerning the distinction significant uncertainties linger with all members selected by the the fact that the judges of the European took place in private session. According to between voluntary arbitration and forced governments, to replace the classic Court of Human Rights are nominated the Court, the CAS should have granted arbitration, as well as the types of article Investment Arbitration: model of arbitration, under which the by the states. Whether the same can the request. None of the exceptions 6 guarantees that may operate depending Contact Lawyers investor typically gets to appoint one of be said of the arbitration system that recognised by the Convention applied. The on the way a particular arbitration the members of a tripartite arbitration has been designed in the domain of Court thus concluded that there had been agreement is characterised. We need to panel. The question has been posed sports is a harder question. Actually, a violation of article 6 in this instance. pay attention to the development of the in particular as to whether such a over the years the ICAS has reviewed Court’s case law in this field, since the permanent body might be too biased its structures and rules of order, to It is important to observe that the Swiss doctrinal terrain is unstable. New cases against the interests of investors, given strengthen the independence of the Federal Supreme Court, when reviewing are likely to arise to test the limits of the the latter’s lack of participation in the CAS, in light of the objections that have the arbitral award concerning Ms Court’s general theory. www.uria.com 6